Tuesday, June 21, 2011

FDIC & JPMORGAN CHASE BANK NA'S P&A AGREEMENT DOES NOT IDENTIFY THE NOTES & MAY NOT BE THE TRUE P&A.


The Purchase &Assumption Agreement between the FDIC & JPMorgan Chase Bank, NA for Washington Mutual Bank does not specifically identify Plaintiff’s Note. And . . .

UPDATE -- June 19, 2012:
Word on the street through a lawsuit filed on behalf of Scott Jolley in California Superior Court in Marin County is that there is purported evidence possibly indicating that FDIC & JPMorgan Chase Bank entered into a different version of the P&A for WaMu than the 39 page version being filed in courts of law across the country.  The true copy is purported to be roughly 120 pages -- not 39 pages.  
A Murder of Crows

This murder of crows does not want the true P&A made public.  Why?  Is this Chase's Achilles Heel? 
 
U. S. DISTRICT COURT CASE # CV10-0815 0D2 (FFMx)
JAVAHIERI V. JPMORGAN CHASE BANK, NA et al: 
Order GRANTING in Part & DENYING in Part Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint file April 28, 2011 
From the decision":
 
C.   WRONGFUL FORECLOSURE & QUIET TITLE
 
JPMorgan Chase Bank, NA’s assertion that the P&A Agreement suffices to establish their ownership of the Note is no longer viable. Indeed, the P&A Agreement does not specifically identify Plaintiff’s Note(See Dkt. No. 10, Exh. 2.) The Court finds that Plaintiff has now sufficiently alleged that JPMorgan Chase Bank, NA did not own his Note and therefore did not have the right to foreclose.
 
From Plaintiff’s memorandum of law attached:
 
WRONGFUL FORECLOSURE – SECOND CAUSE OF ACTION

JPMorgan Chase Bank, NA (hereafter Chase) offers no proof that it acquired an interest in Plaintiff's residence. In this Motion to Dismiss, once again the only document offered to support its claim is the P&A Agreement. Chase asks the court to leap to the conclusion that Washington Mutual Bank (hereafter WMB) was the Lender on September 25, 2008, the date that the Purchase & Assumption Agreement was signed, even though the likelihood of that, given WMB's history of securitization, is less than 50%. The challenge facing homeowners is to prove facts to trial courts at the pleading stage.
 
Wall Street and the Financial Crisis - Anatomy of a Financial Collapse, the U.S.
Senate Permanent Subcommittee on Investigations (April 13, 2011) 650-page report,
was released following an 18-month investigation into the causes of the financial
crisis. WMB was the leading case study in the report—183 pages (28%) of the report were devoted to WMB—the worst of the worst. The report is readily
available for download at the Senate Subcommittee's website. 2
Defendant alleges in its Purchase & Assumption Agreement that "JPMorgan obtained its rights under the loan from the FDIC" (P&A 4:5). Whether or not the Loan was an asset of WMB on September 25, 2008, a key issue in this case, is not mentioned. Chase asks the court to find, without evidence, a fact that it must prove in order to take the property. Nothing in the P&A Agreement shows whether WMB had any beneficial interest in Plaintiff's loan on September 25, 2008. The court is asked to guess the answer and dismiss the case. Then Plaintiff will lose his house.
 
Where factual findings or the contents of the documents are in dispute, those
matters of dispute are not appropriate for judicial notice. Caravantes v. California
Reconveyance Co., 2010 WL 4055560, 9 (S.D.Cal. 2010) citing Darensburg v. Metropolitan Transp. Comm'n, 2006 WL 167657, at *2 (N.D.Cal. 2006).
See Stephen R. Buchenroth and Gretchen D. Jeffries, Recent Foreclosure Cases: Lenders Beware (June 2007); Wells Fargo v.Jordan, 914 N.E.2d 204 (Ohio 2009) (“If plaintiff has offered no evidence that it owned the note and mortgage when the complaint was filed, it would not be entitled to judgment as a matter of law.”);
Chase argues that it obtained the right to sell Plaintiff's property when it acquired
 
Plaintiff's Opposition to Motion to Dismiss Second Amended Complaint
- 17 -
WMB's assets through the P&A Agreement for $1.9 billion. Chase could only acquire what WMB owned. WMB no longer owned Plaintiff' mortgage. Perhaps the identity of the Lender can be tracked down, but it remains unknown.
Defendant argues that Chase assumed no liability for actions taken by WMB prior to September 25, 2008 in regard to the subject loan. This obscures the issue. Plaintiff alleges that WMB did not have any interest in Plaintiff's residence on September 25, 2008. His property was not an asset of WMB, and therefore Chase could not acquire any interest in Plaintiff's residence. This is not a liability issue.
Chase seems to assert that it can foreclose on any property under the P&A Agreement on the grounds that WMB might have had a beneficial interest in the property at some time, even though WMB sold most of its mortgages to investors.
 
Plaintiff alleges in ¶ 62 of the SAC that WMB securitized Plaintiff's single family
residential mortgage loan through Washington Mutual Mortgage Securities Corp. If WMB retained no beneficial interest in the promissory note when it brokered the deal, Chase cannot acquire what WMB never had. If WMB transferred all of its beneficial interest in the note at the inception of the loan and never entered it in its books as an asset, and entered no corresponding reserve on its ledger as a liability in the event of Plaintiff's default, then Chase did not acquire ownership of the note by purchasing WMB's assets because WMB had nothing to sell. This is a question of fact. Plaintiff alleges in ¶ 30 of the SAC that Chase does not have standing to enforce the Note because Chase is not the owner of the Note, not a holder of the Note, and not a beneficiary under the Note.
 
If Chase has no beneficial interest in the note, Chase can only proceed if it
proves that it is the servicer and joins the owner of the note in this action. To dismiss
this lawsuit before ascertaining the truth of these allegations is unwarranted. Chase
could produce evidence in its files, but it prefers to rob Plaintiff of his day in court
__._,_.___
Neither WMB, Chicago Title Company, California Reconveyance Company (hereafter CRC), Chase, nor anyone else has recorded a transfer of a beneficial interest in the Note (or any other interest in the) Property to Chase. (SAC ¶ 29). Chase does not have standing to enforce the Note because Chase is not the owner of the Note, Chase is not a holder of the Note, and Chase is not a beneficiary under the Note. Chase does not have
capacity to exercise a power of sale. Chase does not claim to be a holder of the note.
 
The core issue in this case is to ascertain who is the Lender. Plaintiff did not borrow money from Chase. Plaintiff's pre-discovery inquiries indicate that WMB did not own the loan on September 25, 2008, and therefore Chase is not the Lender. This issue cannot be brushed aside because California is a non-judicial state.
 
Washington Mutual Bank (WMB) remained the Lender for no more than a few days until WMB sold the loan. Thereafter, it was, at best, a servicer of the loan. The Lender was the investment trust that put up the money.
 
Foreclosure of the Wellworth Property was commenced by CRC, having been
appointed trustee on April 30, 2010, by Chase. Chase was not the Lender. 

The Deed of Trust (SAC Exhibit 4) states on page 13, paragraph 24: "Lender, at its option, may from time to time appoint a successor Trustee to any Trustee appointed hereunder by an instrument executed and acknowledged by Lender and recorded in the office of the Recorder of the county in which the Property is located." (SAC Exhibit 8, ¶24).
 
Defendant asks the Court's approval to proceed with foreclosure of Plaintiff's
property on the basis of a NOD and NOTS filed by CRC, a wholly owned subsidiary
of Chase (SAC ¶16) that was appointed as successor Trustee by Chase even though
Chase is not the Lender and has not revealed who the Lender might possibly be.
 
(A) all of the beneficiaries under the trust deed, or their successors in interest…
Nowhere does the Civil Code allow for assignment of a Deed of Trust by the assignee acting on its own behalf.
 
Since Chase is not the Lender, it would violate the terms of the Note and the Deed of Trust to dismiss the SAC and allow Chase to foreclose as a result of a forged Assignment of Deed of Trust signed by someone working for the Assignee.

8 comments:

  1. Beautifully done, Plaintiff, and Plaintiff's counsel. :) You are my newest heroes :)

    Thanks for posting this, to the person who has. However, please clarify if this is from the Plaintiff's complaint text or from the court's order/ruling itself, if you wouldn't mind (would prefer in the future to see quotes from Judges directly that we can use :).

    I was dang excited to read your post (still am), thinking your post was the Judge's exact words that could be quoted in future cases, but bummed to find that this may not be the case, may have been the Plaintiff's words - while still as yummy, not as usable in other cases :)

    I would love to build a collection of usable quotes and, I expect, these will need to come from the Judge and Chase themselves (such as when Chase put on the public record that Chase is NOT, in fact, the successor in interest as it claims elsewhere, which may help a lot of cases as well since it chips away at their automatic golden child status if they're not a successor to the uh, throne :).

    If we can all get (and share direct quotes from the courts and from Chase and its lawyers, these potentially can be used as evidence in other cases if the relate to common patterns between WaMu loans now claimed to be owned/etc. by Chase. Hope that makes sense! Looking forward to seeing more like these!

    And let none of this take away from the fantastic bolt of lightning up into the air (or bat signal? ;) this Plaintiff and there attorney have done - thank you, DG, too!! :)

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    1. Hi - I was wondering if you ever got a response from this post. I would love to know if these are quotes that are usable. This case mirrors mine and I have spent countless hours trying to prove the the securitization (find trust / pool with my loan #). I need to know if this case was won on the "likelihood" of being sold to investor and Chase not owning the "interest" in the note.

      Anything you know would be helpful! You can email me at apgray@me.com
      Thanks!

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  2. I wonder if someone could explain how WMB continued to operate in california as they were no longer allowed to conduct business in the state after surrendering their rights on 12/11/ 1998

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  3. I am amazed by stories like this. If you do not pay your mortgage you lose your house....but then find a technicality about who your mortgage was sold to in an attempt to get back into a house you were not making payments on??? God Bless America!

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    1. What do you think? All of a sudden thousands of Americans decided NOT to make their payments? WAKE UP! We're not talking about mere technicalities here, the banks have gone to great lengths to commit fraud to STEAL houses, that's right STEAL! Some banks have NO legal rights to these homes at all AND they made their payments! Get a grip!!

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    2. what is amazing is that you have no idea or concern for the truth. Truth is YOU already paid for these home with your tax dollars... why let these criminals foreclose, sell and reap the benefits four times over for the same home? yes four times... Chase received $391Billion..yes billion dollars to compensate for these "toxic" assets (the fed paid $16Trillion out to various banks around the world between 2007-2010).. the title insurance company pays again at fclsr... FDIC steps in and pays up to 80% of the deficeincy balance that the foreclosure sale didn't pay... and the sale nets 100%profit.... FOUR TIMES these Crooks make money. Rather than foreclose, the banks should put two new cars in the driveways and say "Thanks for letting us use your name and signatures...." want some truth...? http://www.youtube.com/watch?v=o-pav_yPFkI. I dare you.

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  4. You make the payments (usually three times the value of the house in the end) Then how can they take your house without refunding all the money you paid. That by itself is ridiculous.

    GOD said don't borrow money at usury and don't use collateral. But no one listens to GOD.

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  5. I cannot find the case. The link provided is dead. Please identify the court where the case is filed, so I can find it. I have a case with the identical issue. Very important. Can someone post the court where the case can be found, and any case number if the decision was published.

    Thank you.

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